KAMARUDDIN SHAH Vs. SKDILJAN

JUDGEMENT

(1.) This appeal has arisen out of a suit for enforcement of a mortgage executed by defendant 1 and the father of defendants 2 and 3 in favour of the plaintiff and his father. The claim made in the suit was resisted by defendant 1, the purchaser of the mortgaged property; and the only question for consideration in this appeal is whether the plaintiff's claim in suit was barred by the provisions contained in 0. 2, Rule 2, Civil P.C. The question was decided in favour of the plaintiff by the Court of first instance; but the decision of the Court of appeal below was in favour of defendant 4, the appellant in that Court, and the plaintiff's suit was dismissed by the learned Judge in the lower appellate Court. This appeal is by the plaintiffs in the suit, and the only respondent in the appeal is defendant 4, the purchaser of the mortgaged property; the mortgagor defendants are not parties to the appeal to this Court.

(2.) The mortgage bond on which the claim of the plaintiffs was based was executed on 29th Bhadra 1329 B.S. for Rs. 440; the rate of interest payable was 6 seers of paddy a rupee a year subsequent to the mortgage. The mortgagees took a kobala from the mortgagors for the sale of the mortgaged property along with other properties for the consideration of Rs. 1,000. The original kobala was not produced in Court by the plaintiff; but a certified copy was placed on record by defendant 4 during the trial of the suit. The kobala appears to have been used in evidence in the Court of appeal below without any objection, and it was used as evidence in the case by the learned advocates appearing for the parties to this appeal. From the kobala and the document Ex. B. in the case, an order of the Collector cancelling the sale of properties purported to have been conveyed by the kobala, it would appear, as has been set out in the judgment of the lower appellate Court, that the mortgage in suit for Rs. 440 as also another mortgage for Rs. 178 were recited, and it was mentioned that on account of the two mortgages the defendants dues to the plaintiffs were Rs. 618. The consideration for kobala, Rs. 1,000, was made up of the mortgage bond loans of Rs. 618 and a cash payment of Rs. 382. There were stipulations contained in the kobala, that in case of the purchaser being ejected or dispossessed from the lands conveyed by the kobala, the whole of the consideration money Rs. 1,000, with interest at one anna per rupee, was to be re-paid with interest from the date of the execution of the document till realization. The kobala having been cancelled as inoperative against defendants 1 to 3 and the plaintiffs dispossessed from the properties covered by the same, the plaintiffs realized the amount of Rs. 382 mentioned in the kobala with interest by suit. In view of the position indicated above, the question was whether the plaintiffs were entitled to sue on the mortgage evidencing a loan of Rs. 440; could the suit in which the appeal has arisen be maintained in view of the provisions of Rule 2, C. 2, Civil P.C.?

(3.) The kobala was for the total consideration of Rs. 1,000, made up of the two mortgage loans mentioned therein and a cash payment of Rs. 382; the amount of Rs. 618 went towards the satisfaction of the mortgages, one of which was sought to be enforced in the suit. The effect of the stipulation contained in the kobala for re-payment of the whole of the amount of Rs. 1,000, with interest at a rate different from the rate of interest mentioned in the mortgage bond for Rs. 440, was that a new contract between the parties, extinguishing their rights under the mortgages was brought into existence. The contract evidenced by the kobala, enforceable in certain events was one and indivisible; that contract superseded the contracts of mortgage, evidenced by two mortgage bonds, one of which was sought to be enforced by the plaintiffs in the case before us. There was a suit for realization of Rs. 382 with interest and Rs. 1,000 mentioned in the kobala; a money decree was recovered by the plaintiffs in respect of the claim in suit, which must in our judgment be taken to be a part of the claim that could be made on the contract evidenced by the kobala. The plaintiffs not having included the whole of the claim which they were entitled to make on the terms of one and indivisible contract, which extinguished and completely superseded the mortgage in the case before us must be taken to have relinquished the portion of the claim which he did not make, so far as the amount of Rs. 1,000, the consideration for the contract evidenced by the kobala. In the above view of the case before us the learned Subordinate Judge's decision has to be upheld.